A very interesting and, as best I can tell, almost entirely unnoticed court case, Campion, Barrow & Assocs. of Ill. v. City of Minneapolis (decided Aug. 11, though I just saw the first reference to it a few days ago). Some excerpts:
[Facts:] Since it was founded in the 1970s, CBA [Campion, Barrow & Assocs.] has become one of the leading providers of psychological services to police departments in the United States. [Michael A.] Campion is a licensed clinical psychologist and Chief Executive Officer and Senior Psychologist for CBA. From 1999 to 2005, Campion served on the board of the Illinois Family Institute (IFI), a non-profit organization that was started by James Dobson. According to Campion, IFI promotes traditional family values by, among other things, advocating for profamily legislation. According to Defendants, IFI is an anti-homosexual advocacy organization. In 1977, Campion co-authored an article called “When Was the Last Time You Hugged a Homosexual? A Biblical Perspective on Homosexuality and Its Healing.” The article, which was printed in the Journal of the American Scientific Affiliation, states as its goal “to define the problem of homosexuality and recommend a treatment.”
In 2004 or 2005, CBA began providing psychological services, including fitness-for-duty examinations and preemployment screening, to the [Minneapolis Police Department]….
In the spring or early summer of 2006, members of the PCRC [Police Community Relations Council] became worried that CBA’s testing also had a disparate racial impact on the MPD. By May 18, 2006, at least some members of the PCRC were aware of a City Pages blog posting that mentioned past allegations of racial bias against CBA related to CBA’s work for another city. The blog posting also mentioned Campion’s affiliation with IFI, though the record suggests that PCRC members’ initial concerns related primarily to racial bias. DRI Consulting (DRI), another psychological services firm, was hired to review CBA’s work, and, in July 2006, DRI concluded that there was no evidence of bias.
Campion met with several members of the PCRC on August 22, 2006. At that meeting, Campion’s affiliation with IFI was discussed. For example, according to notes taken during the meeting, one PCRC member expressed skepticism that it “was possible [for Campion] to eliminate biases, especially if [he is] part of a group that is against homosexuality.” In addition, the deposition of Deputy Police Chief Donald Harris indicates that he attended the August 22 meeting and that he recalled “a lot of discussion about the anti-homosexual nature of [IFI].” On August 23, 2006, the PCRC held a regularly scheduled monthly meeting. In their memoranda, Defendants admit that, at this meeting, PCRC members “expressed concerns about bias, based on Campion’s views on homosexuality” and that “packets of research” regarding IFI and Campion were distributed by one PCRC member.
Before the meeting was over, the PCRC approved a motion requesting that the MPD terminate its relationship with CBA, that new proposals for psychological services providers be sought, and that CBA’s work be reviewed. Following the August 23 meeting, at least one PCRC member contacted City Council Member Scott Benson regarding Campion and his connection with IFI. On August 24, 2006, Benson contacted interim Police Chief Timothy Dolan and others via e-mail and asked “[h]ow did Dr. Michael Campion, who was a Board member of the Illinois Family Institute (a notoriously discriminatory and anti-gay group), become the psychologist for the Minneapolis Police Dept for screening new hires, etc.?” The record indicates that the e-mail was forwarded widely, including to all members of the City Council, and several council members responded with e-mails of their own to Dolan, inquiring about removing Campion and, in one instance, citing Campion’s 1977 article on homosexuality. Assistant Police Chief Sharon Lubinski also emailed Dolan and Harris on August 24, 2006, writing “[t]his concerns me, we market and pride ourselves as a gay supportive city and police department, it seems like Dr. Campion has different values. We should discuss this soon.”
News of Campion’s affiliation with IFI generated media coverage and strong public reaction, and the MPD was inundated with calls and emails. On August 25, 2006, the MPD “suspended” its use of CBA for psychological services [and eventually replaced it altogether with a competitor]….
[Legal analysis:] [A]ny concerns that Defendants had about bias and public perceptions of bias against homosexuals stemmed from Plaintiffs’ [First Amendment] protected conduct. Accordingly, Defendants have effectively conceded that Plaintiffs’ protected conduct was a motivating factor behind the MPD’s decision to stop using Plaintiffs’ services in 2006….
A government employer may interfere with the speech [or expressive association] of an employee or contractor provided that “the interests of the [employee or contractor], as a citizen, in commenting upon matters of public concern” are outweighed by “the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). … Factors relevant to the Court’s [weighing] analysis include the nature of the government’s responsibilities, the nature of the plaintiff’s responsibilities as an employee or contractor, the nature of the plaintiff’s exercise of his or her First Amendment rights, and the degree to which exercise of the plaintiff’s exercise of his or her First Amendment rights impeded the government’s operations. In addition, “when balancing an employee’s interest against an employer’s interest, the constitutional standard takes proportionality into account.” The more an employee’s or a contractor’s exercise of First Amendment rights involves matters of public concern, the greater the government’s showing that the exercise of those rights is likely to impede its operations must be before those rights can be restricted….
Defendants argue that public perception that Plaintiffs were biased against homosexuals undermined the effective provision of services by the MPD, and that the government interest in effective police operations justified any interference with Plaintiffs’ First Amendment rights…. Defendants’ asserted justification—the disruptive effect that Plaintiffs’ protected conduct had on provision of government services—is a cognizable one. See Dible v. City of Chandler, 515 F.3d 918, 928-29 (9th Cir. 2008) (“Those worries [about a heckler’s veto] do not directly relate to the wholly separate area of employee activities that affect the public’s view of a governmental agency in a negative fashion, and, thereby, affect the agency’s mission.”); Locurto, 447 F.3d at 178-80 (indicating, in a case involving termination of a police officer who engaged in racist public conduct, that in some circumstances the government may justify taking adverse action against an employee when the provision of government services is disrupted by of the public perception of the employee’s expressive conduct); McMullen v. Carson, 754 F.2d 936, 940 (11th Cir. 1985) ( “[A] law enforcement agency does not violate the First Amendment by discharging an employee whose active participation in an organization with a history of violent activity, which is antithetical to enforcement of the laws by state officers, has become known to the public and created an understandably adverse public reaction that seriously and dangerously threatens to cripple the ability of the law enforcement agency to perform effectively its public duties.”); cf. Rankin v. McPherson, 483 U.S. at 391 (citing with apparent approval McMullen v. Carson with the parenthetical description “clerical employee in sheriff’s office properly discharged for stating on television news that he was an employee for the sheriff’s office and a recruiter for the Ku Klux Klan”).
Regarding the actual balance between the government’s interest in effective provision of services and Plaintiff’s First Amendment interests, genuine issues of material fact preclude the Court from granting summary judgment to any party. For example, the parties agree that news of Plaintiffs’ protected activities engendered public controversy. However, the strength of the effect of that controversy on provision of police services, and therefore the strength of Defendants’ interest, cannot be gauged without factual judgments about the strength of the negative public sentiment and the relationship of the public controversy to factors such as the history of bias in the MPD and the fact that there was no indication that Plaintiffs’ work was actually biased. The Court observes, at this preliminary stage, that Plaintiffs’ First Amendment interests appear to be strong.